Why Aboriginal Title is a Fee Simple Absolute

19 Pages Posted: 18 Aug 2011 Last revised: 2 Mar 2012

Michael C. Blumm

Lewis & Clark Law School

Date Written: February 14, 2012

Abstract

The Supreme Court’s 1823 decision in Johnson v. M’Intosh is a foundation case in both Indian Law and American Property Law. But the case is one of the most misunderstood decisions in Anglo-American law. Often cited for the propositions of the plenary power of the U.S. Congress over Indian tribes and the uncompensated takings of Indian title lands, the Marshall Court decision actually is better interpreted to recognize that Indian tribes had fee simple absolute to their ancestral lands. This article explains why the "discovery doctrine” should have been interpreted to be a fee simple absolute subject to the federal government’s right of preemption. Had the doctrine laid down by Johnson been properly interpreted, its national and international effects today would have been much less pernicious.

Keywords: Indian law, Property law, discovery doctrine, Marshall Court, legal history

JEL Classification: H82, K11, N51, Q15

Suggested Citation

Blumm, Michael C., Why Aboriginal Title is a Fee Simple Absolute (February 14, 2012). Lewis & Clark Law Review, 2011; Lewis & Clark Law School Legal Studies Research Paper No. 2011-24. Available at SSRN: https://ssrn.com/abstract=1910876

Michael C. Blumm (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)

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